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Chandra Greco-Rambo v. Professional Collection

August 25, 2011

CHANDRA GRECO-RAMBO,
PLAINTIFF,
v.
PROFESSIONAL COLLECTION CONSULTANTS AND SCOTT D. WU,
DEFENDANTS.



The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge

ORDER DENYING DEFENDANTS' MOTION TO DISMISS (ECF No. 3)

Presently before the Court is Defendants' motion to dismiss. (MTD, ECF No. 3.) Also before the Court are Plaintiff's opposition, (Opp'n, ECF No. 7), and Defendants' reply, (Reply, ECF No. 8). After consideration, the Court DENIES Defendants' motion to dismiss.

BACKGROUND

This action arises out of a debt incurred by Plaintiff sometime before November 4, 2009. (Complaint ¶ 23, ECF No. 1.) The debt was assigned, placed, or transferred to Defendant Professional Collection Consultant sometime thereafter. (Id. ¶ 27.) On or about November 4, 2009, Defendant Professional Collection Consultants filed a lawsuit in California state court through its counsel, Defendant Wu, against Plaintiff for collection of the debt. (Id. ¶ 28.) The summons and complaint was served at 1257 10th Street in Ramona, California. (Id. ¶ 29.)

Plaintiff alleges that she had moved from the residence five months prior and was never served. (Id. ¶ 30.) Plaintiff also asserts that the residence where service was allegedly made was a foreclosed property, which was locked and boarded up at the time of service. (Id. ¶ 31.) On February 9, 2010, Defendants obtained default judgment against Plaintiff in the state court action. (Id. ¶ 32.) Plaintiff became of aware of the judgment in December 2010 when her employer notified her of a wage garnishment. (Id. ¶ 38.) The default judgment was set aside on March 11, 2011. (Id. ¶ 40.)

Plaintiff filed a complaint against Professional Collection Consultants and Scott D. Wu on April 29, 2011, asserting violation of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692, and the Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code § 1788. (Id. ¶¶ 43--48.) This complaint is the subject of Defendants' present motion to dismiss.

LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint "fail[s] to state a claim upon which relief can be granted," generally referred to as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Although Rule 8 "does not require 'detailed factual allegations,' . . . it [does] demand[] more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, ---- U.S. ----, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 557).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible if the facts pleaded "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556). That is not to say that the claim must be probable, but there must be "more than a sheer possibility that a defendant has acted unlawfully." Id. Facts "'merely consistent with' a defendant's liability" fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept as true "legal conclusions" contained in the complaint. Id. This review requires context-specific analysis involving the Court's "judicial experience and common sense." Id. at 1950 (citation omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged----but it has not 'show[n]'----'that the pleader is entitled to relief.'" Id.

ANALYSIS

Defendants move to dismiss Plaintiff's complaint on two grounds. First, Defendants argue Plaintiff's complaint fails to state a claim upon which relief can be granted. (MTD 2.) More specifically, Defendants claim Plaintiff's complaint does not satisfy Rule 8's pleading requirements. (Id.) Second, Defendants argue that Plaintiff's claims are time-barred. (Id. at 5.) The Court discusses each argument in turn.

I. Rule 8

As an initial matter, the Court notes that Plaintiff's Rosenthal claim is pursuant to California Civil Code § 1788.17, which creates liability under California law for a debt collector's failure to comply with the FDCPA. Because the FDCPA claim forms the basis for Plaintiff's claims, the Court focuses on Plaintiff's pleading with regard to the FDCPA claim.

Defendants' motion to dismiss asserts that Plaintiff's FDCPA claim fails to satisfy Rule 8's pleading standards. Specifically, Defendants find problematic Plaintiff's assertions that Defendants' conduct was knowing and willful. (See Reply 2.) Viewing the complaint in the light most favorable to Plaintiff, the Court finds that Plaintiff ...


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